Provenzale v. United States , 388 F. App'x 285 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7978
ANTHONY PROVENZALE,
Petitioner – Appellant,
v.
UNITED STATES OF AMERICA,
Respondent – Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
Chief District Judge. (5:09-hc-02117-FL)
Submitted: June 23, 2010 Decided: July 16, 2010
Before WILKINSON, MOTZ, and AGEE, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Anthony Provenzale, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Federal prisoner Anthony Provenzale appeals the
district court’s order finding that his 28 U.S.C.A. § 2241 (West
2006 & Supp. 2010) petition should have been brought as a 28
U.S.C.A. § 2255 (West Supp. 2010) motion, and refusing to
convert the petition because a § 2255 motion would be successive
and unauthorized. We vacate the district court’s order and
remand for further proceedings.
We find that the district court correctly determined
that Provenzale should have brought his claims in a § 2255
motion. A federal prisoner such as Provenzale who seeks to
challenge the legality of his conviction or sentence generally
must proceed pursuant to § 2255, with § 2241 petitions reserved
for challenges to the execution of the prisoner’s sentence. In
re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997). In limited
circumstances, however, § 2255 is “inadequate or ineffective” to
test the legality of the detention.
In those cases, the prisoner “may file a petition for
a writ of habeas corpus in the district of confinement pursuant
to § 2241.” In re Jones, 226 F.3d 328, 333 (4th Cir. 2000). In
Jones, this court concluded that a § 2255 motion is inadequate
or ineffective, and a § 2241 petition may be used to test the
legality of a conviction, only when certain criteria are met.
See id. at 333-34. In his self-styled § 2241 petition,
2
Provenzale asked the district court to enter a new judgment
acquitting him of his conviction or, in the least, reduce his
sentence. However, Provenzale cannot satisfy the Jones
criteria. Thus, the district court correctly determined that
Provenzale should have brought his claims in a § 2255 motion.
We nonetheless find that the district court erred when
it found that it could not convert Provenzale’s petition into a
§ 2255 motion because he previously filed a § 2255 motion and
failed to obtain certification to file a successive motion. It
is true that “[a] second or successive [§ 2255] motion must be
certified as provided in section 2244 by a panel of the
appropriate court of appeals.” 28 U.S.C.A. § 2255(h) (West
Supp. 2010). An initial habeas petition generally does not
count for purposes of the “second or successive” rule, however,
if it was voluntarily withdrawn by the petitioner. See, e.g.,
Thai v. United States, 391 F.3d 491, 495-96 (2d Cir. 2004);
Haro-Arteaga v. United States, 199 F.3d 1195, 1196-97 (10th Cir.
1999); Garrett v. United States, 178 F.3d 940, 942-43 (7th Cir.
1999) (per curiam); Alexander v. Johnson, 163 F.3d 906, 908-09
(5th Cir. 1998). Provenzale did not concede upon withdrawal of
his first § 2255 motion that the motion lacked merit, Thai, 391
F.3d at 495-96; Vancleave v. Norris, 150 F.3d 926, 928 (8th Cir.
1998), and it is not apparent that he withdrew his motion to
obtain a tactical advantage in the face of impending defeat,
3
Garrett, 178 F.3d at 943. Thus, we find that Provenzale’s
original § 2255 motion does not bar the filing of another § 2255
motion without pre-filing authorization, and that the § 2241
petition may be converted into a § 2255 motion if Provenzale
agrees. 1
Despite the foregoing, the district court correctly
observed that if it construed Provenzale’s petition as a § 2255
motion, it would lack jurisdiction to entertain the motion
because, having been sentenced in the District Court for the
Northern District of Ohio, Provenzale was required to pursue his
claims in that court. See 28 U.S.C.A. § 2255(a) (West Supp.
2010). Accordingly, if Provenzale agrees to have his petition
recharacterized, the district court must determine whether it
would be in the interests of justice to transfer the motion to
the Ohio district court. See 28 U.S.C. § 1631 (2006) (providing
that if a court finds a lack of jurisdiction, “the court shall,
if it is in the interest of justice, transfer such action or
appeal to any other such court in which the action or appeal
could have been brought at the time it was filed or
noticed . . .”).
1
We note that before characterizing Provenzale’s filing as
a § 2255 motion, the district court must provide Provenzale with
the proper notice and an opportunity to respond as required by
Castro v. United States, 540 U.S. 375, 377 (2003). See United
States v. Blackstock, 513 F.3d 128, 132-35 (4th Cir. 2008).
4
Accordingly, although we deny Provenzale’s motion for
appointment of counsel, we vacate the district court’s order and
remand to the district court for further proceedings. 2 We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
VACATED AND REMANDED
2
We, of course, express no opinion as to the timeliness or
merits of Provenzale’s claims.
5